STATE OF NEW JERSEY v. MAUREEN KELLY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0480-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MAUREEN KELLY,

Defendant-Appellant.

_____________________________________________________

June 21, 2011

Submitted May 17, 2011 - Decided

Before Judges Messano and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. 07-03-0529 and 07-04-0761.

Yvonne Smith Segars, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (David A. Malfitano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

The Bergen County grand jury returned two separate indictments against defendant Maureen Kelly. The first, Indictment 07-04-00761-I, charged defendant with third-degree theft, N.J.S.A. 2C:20-4; and nine counts of third-degree forgery, N.J.S.A. 2C:21-1(a)(3). In Indictment 07-03-00529-I, defendant was charged with second-degree robbery, N.J.S.A. 2C:15-1; first-degree kidnapping, N.J.S.A. 2C:13-1(b); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); and fourth-degree possession of the personal identifying information of another, N.J.S.A. 2C:21-17.3.

On February 4, 2008, defendant entered guilty pleas to a single count in each indictment, third-degree theft and second-degree robbery. Pursuant to the plea bargain, the State agreed to recommend an aggregate sentence not to exceed ten years, with an 85% parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, and to dismiss the remaining counts of both indictments. On March 14, 2008, the judge sentenced defendant to eight years imprisonment on the robbery conviction, with an 85% parole disqualifier, and a concurrent five-year flat term on the theft conviction. The remaining counts of both indictments were dismissed by the State.

Defendant did not file an appeal, but, on August 4, 2008, she filed a pro se petition for post-conviction relief (PCR) and requested appointment of counsel. In her petition, defendant alleged that she "was not afforded [an] opportunity to provide mitigating information to the court to warrant a lesser-included offense, in violation of Fifth Amendment rights." Defendant further claimed "[i]neffective assistance of counsel whereas no psychological examination was conducted . . . in support of [the] existence of mental defect including, but not limited to alcoholism and/or drug, trauma, dysfunctionality, and psychological transference, in violation of Sixth Amendment rights." Lastly, defendant alleged she had "a history of voluntary intoxication, to which she was under the influence at the time of the instant offense." Defendant claimed she was "an addict," and this information "could have been used as an affirmative defense for the purpose of sentencing" or in consideration of "any lesser imposed conviction and degree(s) codified under the charge."

Appointed counsel prepared an amended verified petition re-alleging these points and adding "[p]etitioner's plea of guilty was not knowingly, voluntarily and intelligently entered." No reports regarding defendant's alleged drug or alcohol addiction were appended to the pro se or amended certifications.

On May 8, 2009, Judge Patrick J. Roma, the same judge that accepted defendant's guilty pleas and imposed sentence, considered the PCR petition. PCR counsel "incorporate[d] by reference [the arguments raised in his] brief," which, we note, raised all the points contained in defendant's pro se certification and amended verified petition. In summary, PCR counsel argued "that [trial] counsel should have been more diligent in arguing [defendant's] substance abuse problems, and . . . that . . . constitutes, under these circumstances, ineffective assistance of counsel."

Judge Roma entered an order the same day denying the petition. In an extensive written opinion that accompanied the order, the judge considered each point defendant raised in her original and amended petitions. Regarding the "general claim that trial counsel failed to conduct an adequate pretrial investigation," Judge Roma concluded "petitioner fails to set forth specific facts to prove her claim," citing State v. Cummings, 321 N.J. Super. 154, 164 (App. Div.) (the petition "must . . . set forth with specificity the facts upon which the claim for relief is based, the legal grounds of complaint asserted, and the particular relief sought"), certif. denied, 162 N.J. 199 (1999).

As to the claim that trial counsel provided ineffective assistance in "fail[ing] to explore the defense of intoxication," the judge noted the necessary elements of the defense as contained in N.J.S.A. 2C:2-8(d).1 In short, Judge Roma noted that to be successful, a defendant must demonstrate "'prostration of [her] faculties.'" State v. Cameron, 104 N.J. 42, 56 (1986). After reviewing the factual allegations regarding the robbery and theft convictions, the judge concluded that defendant "fail[ed] to direct the court to any evidence tending to prove that the crimes were not methodical, purposeful crimes." Judge Roma further noted that both crimes were committed against "elderly individuals," demonstrating that defendant "chose these two individuals because they could be seen as easy targets." Regarding the theft conviction, the judge observed that it occurred "over a period of time, and could not have been the result of one incident of pathological intoxication."

Judge Roma then considered whether trial counsel provided ineffective assistance for failing to argue mitigating factors at sentencing based upon defendant's drug and alcohol addiction. He first observed that trial counsel made such an argument at sentencing, "appeal[ing] to the [court's] sense of sympathy regarding petitioner's drug problems." Citing State v. Ghertler, 114 N.J. 383, 390 (1989), Judge Roma concluded that defendant's "drug dependency" did not "justify or excuse" her conduct under N.J.S.A. 2C:44-1(b)(4)("substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense"). The judge further noted that none of the other mitigating factors now urged by defendant were present.

Judge Roma also concluded that defendant failed to state specific facts supporting her claims that trial counsel provided ineffective assistance by 1) failing to provide "mitigating information to warrant a lesser-included offense," or 2) failing "to conduct a psychological examination to determine whether a mental disease or defect defense was available."

Judge Roma thoroughly reviewed defendant's claim that she did not knowingly, voluntarily and intelligently enter her guilty pleas. He cited extensively to the plea transcript in this regard, and he concluded that defendant's "plea was made knowingly, voluntarily, and intelligently."

Lastly, Judge Roma considered whether defendant was entitled to an evidentiary hearing on the PCR petition. He concluded defendant "failed to present a prima facie claim because she ha[d] failed to establish a reasonable likelihood of succeeding under the Strickland2 test" and denied defendant's request.

Defendant raises the following points on appeal:

POINT ONE

DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD BE REMANDED WITH INSTRUCTIONS TO THE TRIAL COURT TO ORDER THE OFFICE OF THE PUBLIC DEFENDER TO APPOINT NEW PCR COUNSEL WHO WILL FULFILL HIS OR HER OBLIGATION TO PROVIDE DEFENDANT WITH THE EFFECTIVE ASSISTANCE OF PCR COUNSEL

POINT TWO

THE FAILURE OF TRIAL COUNSEL TO INVESTIGATE THE VIABILITY OF A VOLUNTARY INTOXICATION DEFENSE TO THE ROBBERY CHARGE, DESPITE HIS KNOWLEDGE OF DEFENDANT'S DRUG ADDICTION AND AMPLE EVIDENCE IN POLICE REPORTS REGARDING DEFENDANT'S DRUG USAGE, DEPRIVED DEFENDANT OF HER CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL

POINT THREE

DEFENDANT IS ENTITLED TO A NEW SENTENCE HEARING BECAUSE BOTH THE STATE AND THE SENTENCING COURT RELIED ON ALLEGED FACTS, WITHOUT DEFENDANT'S CONSENT, THAT WERE NEVER ADMITTED BY DEFENDANT AND WERE NOT INCLUDED IN THE FACTUAL BASIS SHE ENTERED DURING HER PLEA HEARING, IN VIOLATION OF DEFENDANT'S RIGHT TO TRIAL BY JURY, AND STATE V. NATALE3 (NOT RAISED BELOW)

POINT FOUR

THE PROCEDURAL BAR OF R. 3:22-3 SHOULD NOT BE APPLIED TO DEFENDANT'S PETITION FOR POST CONVICTION RELIEF

POINT FIVE

THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING

We have considered these arguments in light of the record and applicable legal standards. We affirm.

In Points Two, Four and Five, defendant challenges Judge Roma's denial of her claims of ineffective assistance of trial counsel and his decision not to accord her an evidentiary hearing on those claims. We note that Judge Roma did not deny defendant's petition because of a procedural bar, but instead considered the merits of each argument. Based upon our own review of the record, we affirm the denial of defendant's PCR petition without an evidentiary hearing substantially for the reasons set forth in Judge Roma's written opinion. The arguments raised on appeal lack sufficient merit to warrant any further discussion in this opinion. R. 2:11-3(e)(2).

In Point Three, defendant raises for the first time a challenge to her sentence. She contends that the State argued, and the judge considered, facts that were not admitted at the time of her plea, thus violating the Court's holding in Natale, supra. The State counters by arguing that defendant's challenge to her sentence is procedurally barred and should be denied on its merits because Judge Roma did not consider facts outside the record in imposing sentence.

We agree that defendant's belated challenge to her sentence is procedurally barred by Rule 3:22-4. That Rule provides in relevant part:

Any ground for relief not raised in the proceedings resulting in the conviction, . . . or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds:

(1) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or

(2) that enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice; or

(3) that denial of relief would be contrary to a new rule of constitutional law under either the Constitution of the United States or the State of New Jersey.

[R. 3:22-4(a).]

"'[T]he rule is, of course, fairly established that mere excessiveness of sentence otherwise within authorized limits, as distinct from illegality by reason of being beyond or not in accordance with legal authorization, is not an appropriate ground of post-conviction relief and can only be raised on direct appeal from the conviction.'" State v. Acevedo, 205 N.J. 40, 45-46 (2011) (quoting State v. Clark, 65 N.J. 426, 436-37 (1974)). Moreover, defendant's argument is unavailing on its merits.

At the time of her guilty plea, defendant admitted "us[ing] force upon [the victim of the robbery]" in the course of committing a theft, and "purposely put[ting] her in fear of immediate[] bodily harm[.]" When questioned under oath by the assistant prosecutor, defendant further admitted that she pushed the victim down and tried to "tie her" to a chair. Defendant acknowledged to the judge that she had reviewed the police reports in the matter with her attorney and had "[no] reason" to "dispute the information . . . as it pertain[d] to th[o]se charges."

At sentencing, a different assistant prosecutor told Judge Roma that his colleague had spoken to the robbery victim who had been "significantly traumatized by the incident." The prosecutor then cited the police reports that indicated defendant had "threaten[ed]" the victim with a gun, and "spray[ed] her in the face with a window cleaning solution." He urged Judge Roma to "take into consideration the facts and the fact that the victim will never be able to forget this incident [for] as long as she lives."

In assessing the impact of the robbery upon the elderly victim, the judge observed that she was at work when defendant "str[uck] [her] in [her] head [and] tr[ied] to rob [her] and kill [her]." However, immediately thereafter, the judge noted that while he felt "justified" in imposing the ten-year sentence contemplated by the plea bargain, he was persuaded to impose an eight-year sentence instead.

Viewing the sentencing transcript in its entirety, we are firmly convinced that while Judge Roma may have inadvertently resorted to hyperbole in describing defendant's intent, he did not engage in judicial fact-finding prohibited by Natale, supra, nor did he improperly utilize facts outside the record to impose a sentence otherwise not permitted by the plea bargain and appropriate sentencing guidelines. We affirm defendant's sentence on its merits.

Lastly, in Point One, defendant raises a claim of ineffective assistance of PCR counsel. We reject the argument.

As to such claims, the Court has stated:

PCR counsel must communicate with the client, investigate the claims urged by the client, and determine whether there are additional claims that should be brought forward. Thereafter, counsel should advance all of the legitimate arguments that the record will support. If after investigation counsel can formulate no fair legal argument in support of a particular claim raised by defendant, no argument need be made on that point. Stated differently, the brief must advance the arguments that can be made in support of the petition and include defendant's remaining claims, either by listing them or incorporating them by reference so that the judge may consider them.

[State v. Webster, 187 N.J. 254, 257 (2006).]

"The remedy for counsel's failure to meet the[se] requirements . . . is a new PCR proceeding." State v. Hicks, 411 N.J. Super. 370, 376 (App. Div. 2010) (citing State v. Rue, 175 N.J. 1, 4 (2002)).

Defendant argues that PCR counsel failed to provide any expert report regarding her addictions, failed to investigate the facts supporting her claims in this regard, failed to obtain defendant's plea form, and failed to present an argument for relief, "except [to] rest on his inadequate brief."

However, PCR counsel's brief thoroughly set forth all of defendant's claims and provided significant case law and legal argument as to each. Defendant has failed to produce any expert report or even allege with any specificity that one could have been obtained but was not. Defendant's plea form is part of the appellate record but it provides no basis to accord her relief. Moreover, for reasons expressed in Judge Roma's opinion, defendant's entire assertion that prior counsel, at every level, failed to properly present an available defense is without merit.

1 N.J.S.A. 2C:2-8(a) provides that "[e]xcept as provided in subsection d. of this section, intoxication . . . is not a defense unless it negatives an element of the offense." Subsection (d), in turn, provides, "[i]ntoxication which (1) is not self-induced or (2) is pathological is an affirmative defense if by reason of such intoxication the actor at the time of his conduct did not know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong. Intoxication under this subsection must be proved by clear and convincing evidence."

2 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).

3 State v. Natale, 184 N.J. 458, 466 (2005) (holding "that a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee").